This Thursday the 21st, the Supreme Federal Court (STF), Brazil’s highest court, declared unconstitutional the temporary framework that would limit the demarcation of indigenous lands in the country. The legal thesis created by the ruralistas prohibits the demarcation of areas that were not occupied by indigenous people on the day of the promulgation of the Federal Constitution, October 5, 1988.
Nine of the 11 ministers agreed with the indigenous peoples in recognizing that the Constitution does not provide for a temporal criterion to validate the demarcations. The only supporters of the temporary framework were the two members of the Court appointed by Jair Bolsonaro (Liberal Party): Nunes Marques and André Mendonça.
This interpretation of the thesis must be respected by all the courts in the country, since the decision was described by rapporteur Edson Fachin as having general repercussions. As a result, non-indigenous landowners or squatters cannot use the time frame to challenge demarcations in court.
:: Temporary framework validation could exacerbate violence against kaiowá guaraní (available in Portuguese) ::
The Supreme Court did not reach a ruling regarding certain controversial points raised by the ministers during the ruling, such as compensation to landowners and the opening of indigenous lands to mining. These issues will be defined next week.
The result puts an end to one of the most important chapters of the indigenous movement in Brazil. The rejection of the temporal framework has been at the center of the mobilizations and protests of recent years. Lawyers and jurists – indigenous and non-indigenous – affirm that the thesis could make 90% of the demarcation processes unfeasible.
In defense of the unconstitutional thesis, politicians and lawyers representing large landowners affirm that the framework would bring “legal security” to rural producers.
Although defeated in the Supreme Court, the temporary framework is still being processed in the National Congress. Through a bill, the thesis was approved in the Chamber of Deputies and will be voted on in the Constitution and Justice Commission (CCJ) of the Senate next Wednesday the 27th.
‘Now we can breathe’
Indigenous leaders who live in areas threatened by the temporary framework celebrated the decision of the Supreme Federal Court. Now the indigenous peoples who are trying to survive in the midst of the most serious conflicts over land ownership in the country, with a large number of deaths and injuries, breathe a little easier. On one side are the landowners and large agribusiness companies. On the other, indigenous people surrounded by gunmen who saw in the ruling a hope to guarantee the future of the next generations.
“For the first time we have reparation for damages after 523 years of the arrival of (Pedro Álvares Cabral). The Supreme Court (Federal Court) did very well in defining this. Now it is definitely possible to breathe. It is a victory for the movement,” he stated Daniel Vasques, leader of Aty Guasu, an organization that represents the Guaraní Kaiowá.
In the state of Mato Grosso do Sul, the Guaraní Kaiowá are victims of a permanent context of human rights violations. In the last 20 years, more than 100 indigenous people have been murdered. The state is marked by indigenous recoveries of territories carried out after 1988. If the time frame were validated, the landowners would have legitimacy to request the expulsion of these families before the Justice.
Relief is also felt in the Guyraroká Indigenous Land, whose declaratory ordinance was annulled by the Supreme Court due to the time frame. Thanks to the invalidation of the legal criterion, the indigenous people will be able to recover their territorial rights.
The time frame
The temporal framework is a legal thesis defended by agribusiness, rejected by indigenous organizations and considered unconstitutional by jurists and lawyers – indigenous and non-indigenous.
The proposal would radically change the criteria for demarcations by establishing that only lands already occupied by indigenous peoples on October 5, 1988 – the date of promulgation of the Brazilian Constitution – may be claimed by them.
An indigenous group that has occupied a territory for centuries, but was not in the place on the exact date established by the framework, could not have the right to demarcation.
Indigenous leaders and lawyers, jurists and environmentalists consider that the temporal framework criterion would be capable of paralyzing new demarcations and also allowing already concluded demarcation processes to be questioned in court.
The thesis of the temporal framework was analyzed by the STF through Extraordinary Appeal (RE) 1017365, which evaluated the case of the indigenous people of the Xokleng people, of Santa Catarina. Among other points, the ruralistas maintained that the framework would be a way to regulate article 231 of the Federal Constitution. The fragment of the Magna Carta establishes: “(…) the Indians are recognized for their social organization, customs, languages, beliefs and traditions, and the original rights over the lands that they traditionally occupy, corresponding to the Union to demarcate them, protect and respect all their property”.
Editing: Nadini Lopes and Nicolau Soares